Simon Hughes successfully defends appeal on limitation point in the High Court
12.03.20
Mr R Lad v 01408357 LTD and Entex LTD
Simon Hughes represented the fourth Defendant/first Respondent, 01408357 Limited in the High Court, appearing before The Hon. Mrs Justice Andrews.
Mr Hughes was co-defending alongside Mr Patrick Limb QC of Ropewalk Chambers, and the Claimant was represented by Alastair Wright of St John’s Buildings.
This appeal centred on the application of ss.14 and 33 of the Limitation Act 1980 (‘the Act’) by the court below. One key factor in that application and exercise of the judge’s discretion being the Claimant’s lack of capacity.
A third ground of appeal related to costs orders made in the courts below, however, little discussion was had regarding this, as there was no proper basis for the appeal court to vary or revoke the orders. As such, I have not considered the submissions in relation to this ground of appeal further.
Background
This case involved a claim for noise-induced hearing loss against five defendant employers. The first three of those employers settled claims with the Claimant. The fourth and fifth Defendants were dissolved by the time of the Claimant’s claim, default judgments were entered against them, which were later set aside, and in a CMC it was ordered that limitation be tried as a preliminary issue.
Various trial dates were adjourned due to the Claimant’s ill health and apparent mental health issues. Medical reports were obtained and in January 2019 District Judge Atkinson sitting in the County Court held that the Claimant did not lack capacity. The trial of limitation was therefore listed for June 2019.
At the trial of limitation, before Recorder Scott QC at Leicester County Court, the judge found that the Claimant lacked capacity to conduct proceedings. The judge appointed the Claimant’s son to act as litigation friend, and ordered that the Claimant’s witness statement stand as evidence without cross examination.
The Recorder, faced with a difficult situation, dismissed the claim. The Recorder did so on the basis that the Appellant had brought his claim outside the primary limitation period, pursuant to section 11 and section 14 of the Act. Further, that exercising his broad discretion under section 33, it was not equitable to extend that limitation period to allow the Claimant’s claim to proceed.
The Claimant appealed that decision, resulting in the appeal hearing in March. Further details on the first-instance decision and the appeal can be found under the headings below.
Section 14 Limitation Act 1980
The Claimant’s claim form was received by the County Court Money Claims Centre on 12/11/2015. This was therefore the relevant date of for the purposes of the 3 year limitation period pursuant to section 11 of the Act. The Claimant contended that his date of knowledge was 17/11/2012. The margins within which the Claimant was operating were therefore fine – a matter of 5 days.
The issue for the Learned Recorder at first instance, was, therefore: prior to 12/11/2012, did the Claimant know or appreciate a real possibility that he had hearing loss that was attributable to his work, or could he reasonably have appreciated that possibility with the assistance of expert advice? (This test hailing from section 14(3) of the Act).
In fact, the Claimant had attended his General Practitioner on 29/09/2010, the medical records indicating that the Claimant’s hearing loss had been present for a ‘long time’, the GP queried whether hearing aids were necessary, and advised the patient to go for a check-up whilst travelling in India (which at the time, he was about to do and would be there for around 3 months) and return for a check-up on coming back to the UK.
This entry in the Claimant’s medical records was the centre of much debate in the appeal hearing. The Appellant submitting that the entry referred only to advice relating to obtaining hearing aids, with no discussion of the cause of the hearing loss. Mr Wright, for the Appellant, however, conceded that it was open to interpretation.
The Respondents argued that the note clearly detailed not only treatment of hearing loss but also cause.
The Respondents also took Mrs Justice Andrews to the relevant case law, that being Platt v BRB [2014] EWCA Civ 1401 and Johnson v Ministry of Defence [2012] EWCA Civ 1505. In that latter case, the objective test is set out at paragraph 23 by Dame Janet Smith, quoting from Lord Hoffman’s speech in the case of Bracknell Forest Borough Council v Adams [2005] PIQR:
“a person who is aware that he has suffered a personal injury, serious enough to be something about which he would go and see a solicitor if he knew he had a claim, will be sufficiently curious about the causes of his injury to seek whatever expert advice is appropriate.”
In cases such as these, there is an obligation on the Claimant to make reasonable enquiries. The policy reasons behind this being that, a Claimant who is entitled to bring an action as of right many years after the relevant events, can cause real unfairness to defendants.
The above cases were authorities which the Learned Recorder had specifically considered within his judgment at the preliminary trial.
The Learned Recorder found, on the balance of probabilities, that the Claimant knew or appreciated the real possibility that his hearing loss was attributable to his work after 29/09/2010 and before 12/11/2012. Whilst he did not make a finding on the exact date of knowledge, this was all that was necessary for the purposes of concluding that the claim was out of time.
Mr Hughes and Mr Limb QC both argued that the Recorder’s finding was proper both on the facts and on the law. Indeed, that this was not only a finding that the Recorder could have come to, but that, given the authorities, that he should have come to.
Mrs Justice Andrews agreed with those submissions.
Section 33 Limitation Act 1980
Given that the Learned Recorder concluded that the claim was out of time, he then went on to consider the application of section 33.
The Learned Recorder identified two specific issues when exercising his broad discretion.
Firstly, that by the time of the limitation hearing, the Claimant had lost capacity. The Recorder took into consideration the delay of 7 years between the admitted date of knowledge and the date of the hearing of limitation. The Claimant’s loss of capacity being a point of forensic prejudice having risen during that period of delay. It’s effect being that the court could not investigate, and the Respondent could not challenge the Claimant’s factual assertions.
Secondly, that the Claimant had, with capacity, indicated a desire to bring the proceedings to a close. The prejudice, therefore, that would be caused to a Claimant who could not bring his claim, was limited.
The Recorder exercised his discretion and concluded that it was not just to allow the claim to proceed any further.
On appeal, Mr Wright for the Claimant argued that the key period of delay on which the courts should focus is the initial period of delay – after the limitation period has expired. In such circumstances, the delay was minimal and caused the Defendants minimal prejudice.
Mrs Justice Andrews, in her judgment, accepted that submission but stressed that the court must also consider all of the circumstances. Mrs Justice Andrews concluded (paraphrased), “as far as s.33 is concerned, the decision made by the Recorder was well within the ambit of the discretion. He took into account factors he was entitled to take into account. There is no basis for this court to disturb that finding.”
The appeal was therefore dismissed on all three grounds.
This case is a further example of the difficulties Claimants, who have not made proper enquiries as to the source of their medical condition and/or followed expert advice, will face in Limitation hearings particularly in relation to Section 14(3) of the LA 1980. It further demonstrates that when the court finds that a case has been brought out of time the Appellate Court will be slow to interfere with the discretion of the trial judge where he has properly considered all relevant factors and reached a reasoned decision.
Isabelle Knight
Civitas Law
18th March 2020.